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33 U. Tol. L. Rev. 773 (2001-2002)
Are the Indigent Too Poor for Bankruptcy - A Critical Legal Interpretation of the Theory of Fresh Start within a Law and Economics Paradigm

handle is hein.journals/utol33 and id is 785 raw text is: ARTICLE ARE THE INDIGENT TOO POOR FOR BANKRUPTCY? A CRITICAL LEGAL INTERPRETATION OF THE THEORY OF FRESH START WITHIN A LAW AND ECONOMICS PARADIGM Otis B. Grant 1. INTRODUCTION W HILE campaigning for the United States Presidency, George W Bush urged Americans to embrace a new era of personal responsibility.' Now that he is in office we get a chance to see Bush's theme of responsibility manifest into policy. The self-proclaimed compassionate conservative2 championed the Bankruptcy Reform Act of 2001,' in which he asserted that destitutes must take responsibility for their debts, rather than simply discharging them.4 Although critics may contend that Bush's compassionate conservativism is merely a cloaked version of trickle-down economics, Bush s delineation of a moralistic underpinning of * Assistant Professor of Law, School of Public and Environmental Affairs, Indiana University South Bend; Director, Institute for the Study of Race, Law and Public Policy, J.D. University of Connecticut School of Law. The author gratefully acknowledges Professor Nicholas L. Georgakopoulos of Indiana University School of Law-Indianapolis for his guidance and support. The author also gratefully acknowledges Professor Robert Whitman of the University of Connecticut School of Law for his encouragement and support. The author wishes to thank the editors and staff of the University of Toledo Law Review, including Jennifer Geyer, for their patience and guidance, and especially Rosemary Missisian for her invaluable ideas and her contribution to the editing process. 1. In his Presidential inaugural address, Bush proclaimed that America at its best is a place where personal responsibility is valued and expected. Encouraging responsibility is not a search for scapegoats; it is a call to conscience. George W Bush, Our Public Interest Depends on Private Character, Inaugural Address (Jan. 20, 2001), in VrrAL SPEECHES OF THE DAY 8, 227-31 (2001). 2. In his address to the Republican National Convention, Bush described his compassionate conservatism as putting conservative values and conservative ideas into the thick of the fight for justice and opportunity. George W Bush, Compassionate Conservatism, Address Before the Republican National Convention, in VrrAL SPEECHES OF THE DAY 22, 642-46 (2000). 3. The legislation for the Bankruptcy Reform Act of 2001 was passed by both Houses of Congress albeit in different versions. Both S.B. 220 and H.R. 333 contain structures that will change bankruptcy practice by imposing more burdens on debtors. See H.R. 333, 107th Cong. (200 1); S. 220, 107th Cong. (2001). 4. The goal of the Bankruptcy Reform Act is to subject more debtors to repayment requirements. For example, debtors will not be able to keep personal property bought during the one year prepetition. Nor will the debtor be able to keep automobiles acquired within three years prepetition (five years if the House version becomes law). In addition, any surviving ability to cram down an undersecured creditor's claim, orstrip down lien, is limited by valuing a consumer's collateral at its higher amount.

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